In a report published last week by the Fawcett Society, the charity argues that the law should be strengthened to protect women from harassment by third parties, such as clients and customers.
It therefore recommended as part of its Sex Discrimination Law Review, that the government should reintroduce section 40 of the Equality Act which aims to provide protection to employees from third party harassment.
In legal terms sexual harassment can occur in the workplace from three sources: employers, other employees and third parties. Third parties include all those with whom an employee comes into contact in the course of their work, such as clients, customers and outside business contacts such as contractors, their staff and agents.
The Equality Act 2010 defines sexual harassment as “unwanted conduct of a sexual nature, which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant or of violating the complainant’s dignity”.
Section 40 of the Act, as originally drafted, provided that an employer could be liable for third party harassment if they knew of two previous incidents of harassment and failed to take “reasonably practicable” steps to prevent the third party from harassing employees.
The charity, however, argues that employer’s should be liable for a single incident of harassment by a third party. It therefore recommends that the section should be revised to require only one previous incident of third party harassment, with provision to limit an employer’s liability in certain circumstances. For example, for people employed to look after those with severe mental health problems or cognitive disabilities, vulnerable children or prisoners.
More broadly, the charity argues that the time is right to introduce a new requirement on employers to take steps to prevent discrimination and harassment in their workplaces. The new duty should require organisations with 250 or more staff to publish a diversity and inclusion review of their workplace every three years.
Organisations should also be required to report on their action plan to prevent discrimination and harassment and promote equality. Section 124 of the Equality Act should also be reinstated. This provided that in a successful case an employment tribunal could a recommendation that would benefit the wider workforce. This is important since the majority of employees who bring a claim of discrimination leave the workplace.
Jo Seery of Thompsons Solicitors commented: “Sexual harassment in all forms is both unacceptable and unlawful. We welcome the proposals to extend the protection for women who are vulnerable to harassment by clients or customers. In light of recent revelations, the Government should be ashamed of itself for repealing those provisions which provided protection for women because they considered it to be a “burden” on employers.”
Click to read the full report.